No ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE PETITIONER

Transcription

1 No TONY HENDERSON, PETITIONER v. UNITED STATES OF AMERICA ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE PETITIONER JOHN P. ELWOOD VINSON & ELKINS LLP 2200 Pennsylvania Ave., NW, Suite 500 West Washington, DC (202) DANIEL R. ORTIZ Counsel of Record TOBY J. HEYTENS UNIVERSITY OF VIRGINIA SCHOOL OF LAW SUPREME COURT LITIGATION CLINIC 580 Massie Road Charlottesville, VA (434) [Additional Counsel Listed On Inside Cover]

2 MARK T. STANCIL ROBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP 1801 K Street, NW, Suite 411 Washington, DC (202) DAVID T. GOLDBERG DONAHUE & GOLDBERG LLP 99 Hudson Street, 8th Floor New York, NY (212)

3 QUESTION PRESENTED The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated. Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. La Fatch, 565 F.2d 81, 83 (6th Cir. 1977))). 18 U.S.C. 922(g), however, makes it unlawful for any person * * * who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any firearm. The question presented is whether such a conviction prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer noncontraband firearms to an unrelated third party to whom the defendant has sold all his property interests or (2) sell the firearms for the benefit of the defendant. The Second, Fifth, and Seventh Circuits and the Montana Supreme Court all allow lower courts to order such transfers or sales; the Third, Sixth, Eighth and Eleventh Circuits, by contrast, bar them. (I)

4 II TABLE OF CONTENTS Page Table Of Authorities... IV Opinions Below... 1 Jurisdiction... 1 Statutory Provision And Rule Involved... 1 INTRODUCTION... 1 STATEMENT... 3 A. Legal Background... 3 B. Factual Background... 5 C. Procedural History... 7 SUMMARY OF ARGUMENT ARGUMENT I. BECAUSE 922(G) PROHIBITS ONLY POSSESSION, IT DOES NOT BAR THE TRANSFER OR SALE OF FIREARMS TO APPROPRIATE THIRD PARTIES A. "Possession" Has A Clear, Long-Established Meaning Distinct From Other Incidents Of Ownership B. The Eleventh Circuit s Expansion Of Possession To Include Nonpossessory Interests Is Inconsistent With The Structure Of The Statute And Multiple Canons Of Statutory Construction C. The Eleventh Circuit s Rule Turns 922(g)'s Purpose On Its Head... 23

5 III D. The Eleventh Circuit s Broad Theory Of Possession Allows The Government To Effectively Accomplish A Forfeiture Of Noncontraband Property Without Providing Any Process E. The Eleventh Circuit s View Of Possession Must Be Rejected Because It Raises Serious Constitutional Doubts II. THE ELEVENTH CIRCUIT WRONGLY APPLIED THE DOCTRINE OF UNCLEAN HANDS III. RULE 41(G) AND EQUITY BOTH PERMIT THE COURTS TO ORDER THE TRANSFER OR SALE OF FIREARMS TO AN APPROPRIATE THIRD PARTY CONCLUSION... 42

6 Cases: IV TABLE OF AUTHORITIES Page(s) Andrus v. Allard, 444 U.S. 51 (1979)... 20, 32, 33 Arnett v. Kennedy, 416 U.S. 134 (1974) Austin v. United States, 509 U.S. 602 (1993)... 26, 35 Barrett v. United States, 423 U.S. 212 (1976) Bennis v. Michigan, 516 U.S. 442 (1996) Cacieri v. Salazar, 555 U.S. 379 (2009)... 11, 15 Clark v. Martinez, 543 U.S. 371 (2005) Connecticut Nat l Bank v. Germain, 503 U.S. 249 (1992) Cooper v. City of Greenwood, 904 F.2d 302 (5th Cir. 1990).... passim Degen v. United States, 517 U.S. 820 (1996) Dering v. Earl of Winchelsea, (1787) 29 Eng. Rep (Exch.); 1 Cox. Eq. Cas Dickerson v. New Banner Inst., Inc., 460 U.S. 103 (1983) District of Columbia v. Heller, 554 U.S. 570 (2008)... 34, 35 Fuentes v. Shevin, 407 U.S. 67 (1972)... 28, 29 Hibbs v. Winn, 542 U.S. 88 (2004) Holland v. Florida, 560 U.S. 631 (2010)... 40, 41 Hovey v. Elliott, 167 U.S. 409 (1897)... 3 Huddleston v. United States, 415 U.S. 814 (1974) Hudson v. Palmer, 468 U.S. 517 (1984)... 32

7 Cases Continued: V Page(s) Hunsucker v. Phinney, 497 F.2d 29 (5th Cir. 1974) Huntleigh USA Corp. v. United States, 525 F.3d 1370 (Fed. Cir. 2008) Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240 (1933)... 36, 37 Lawton v. Nyman, 327 F.3d 30 (1st Cir. 2003) Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) Lee v. City of Chicago, 330 F.3d 456 (7th Cir. 2003) Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) Loughran v. Loughran, 292 U.S. 216 (1934)... 36, 37 Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 (1988) McCleskey v. Zant, 499 U.S. 467 (1991) McDonald v. City of Chicago, 561 U.S. 742 (2010) McVeigh v. United States, 78 U.S. (11 Wall.) 259 (1870) Mendez v. United States, No. 1:99-cv JFK, 2003 WL (S.D.N.Y. July 16, 2003) Nat l Bank & Loan Co. v. Petrie, 189 U.S. 423 (1903) Phillips v. Washington Legal Found., 524 U.S. 156 (1998) Porter v. Warner Holding Co., 328 U.S. 395 (1946)... 40, 41

8 Cases Continued: VI Page(s) Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806 (1945) Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006) Russello v. United States, 464 U.S. 16 (1983)... 20, 21 Scarborough v. United States, 431 U.S. 563 (1977)... 16, 23 Small v. United States, 544 U.S. 385 (2005)... passim State v. Fadness, 268 P.3d 17 (Mont. 2012) Ullmann v. United States, 350 U.S. 422 (1956) United States v. $8,850 in U.S. Currency, 461 U.S. 555 (1983) United States v. All Assets of Statewide Auto Parts, Inc., 971 F.2d 896 (2d Cir. 1992) United States v. Approximately 627 Firearms, More or Less, 589 F. Supp. 2d 1129 (S.D. Iowa 2008) United States v. Bajakajian, 524 U.S. 321 (1998) United States v. Casterline, 103 F.3d 76 (9th Cir. 1996) United States v. Craft, 535 U.S. 274 (2002) United States v. Craven, 478 F.2d 1329 (6th Cir. 1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977) United States v. Farrell, 606 F.2d 1341 (D.C. Cir. 1979)... 3

9 Cases Continued: VII Page(s) United States v. Felici, 208 F.3d 667 (8th Cir. 2000)... 4, 7, 18 United States v. Garrett, 903 F.2d 1105 (7th Cir. 1990) United States v. Headley, 50 F. App x 266 (6th Cir. 2002) United States v. Howell, 425 F.3d 971 (11th Cir. 2005)... passim United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)... passim United States v. Kaczynski, 551 F.3d 1120 (9th Cir. 2009) United States v. LaFatch, 565 F.2d 81 (6th Cir. 1977)... 3 United States v. Laughman, 618 F.2d 1067 (4th Cir. 1980) United States v. Melquiades, 394 F. App x 578 (11th Cir. 2010) United States v. Miller, 588 F.3d 418 (7th Cir. 2009)... passim United States v. One 1936 Model Ford V-8 De Luxe Coach, Motor No , 307 U.S. 219 (1939) United States v. Parsons, 472 F. Supp. 2d 1169 (N.D. Iowa 2007) United States v. Pelusio, 725 F.2d 161 (2d Cir. 1983)... 16

10 Cases Continued: VIII Page(s) United States v. Premises Known as 608 Taylor Ave., Apt. 302, Pittsburgh, Pa., 584 F.2d 1297 (3d Cir. 1978) United States v. Roberts, 322 F. App x 175 (3rd Cir. 2009) United States v. Rodriguez, No. EP-08-CR PRM, 2011 WL (W.D. Tex. Feb. 18, 2011) United States v. Sellers, 670 F.2d 853 (9th Cir. 1982) (per curiam) United States v. Turley, 352 U.S. 407 (1957) United States v. Virciglio, 441 F.2d 1295 (5th Cir. 1971) United States v. Wong Kim Bo, 472 F.2d 720 (5th. Cir. 1932) United States v. Zaleski, 686 F.3d 90 (2d Cir. 2012)... 10, 30, 31, 42 Williams v. Taylor, 529 U.S. 362 (2000) Statutes and Rules: 18 U.S.C. 229(a)(1) U.S.C. 229A(a) U.S.C. 229B(a) U.S.C. 921(a)(3) U.S.C. 922(g)... passim 18 U.S.C. 922(j) U.S.C. 924(d)(1)... 21, 26, 27

11 IX Statutes and Rules Continued: Page(s) 18 U.S.C. 931(a) U.S.C. 981(a)(1) U.S.C U.S.C. 1254(1)... 1 An Act for Providing Against Invasions and Insurrections, 1777 Va. Acts ch. VII, reprinted in 9 Hening s Statutes at Large 291 (1821) Fed. R. Civ. P. Supp. 4(g)... Fed. R. Civ. P. Supp. G(2) Fed. R. Civ. P. Supp. G(9) Fed. R. Crim. P. 41(g)... passim The Firearm Owner s Protection Act of 1986, Pub. L. No , 100 Stat Legislative Materials 114 Cong. Rec. 13,868 (1968) Cong. Rec. 13,869 (1968) Cong. Rec. 14,774 (1968) H.R. Rep. No. 192, 106th Cong., 1st Sess. (1999) Miscellaneous: Black s Law Dictionary (9th ed. 2009) Alison Brennan, Analysis: Fewer Gun Owners Own More Guns, CNN (July 31, 2012, 8:05 pm), ting-in-guns-beats-tech-stocks.html... 31

12 X Miscellaneous Continued: Page(s) Zechariah Chafee, Jr., Coming Into Equity With Clean Hands, 47 Mich. L. Rev. 877 (1949) Dan B. Dobbs, Handbook on the Law of Remedies 2.4 (1973) Experian, The 2011 Discretionary Spend Report (2011) Larry Fitzpatrick, No Heirs Found For Springfield Man Who Died Leaving Valuable Gun Collection, Or. Herald, May 11, 2012, available at 30 Erica Hashimoto, Reclaiming the Equitable Heritage of Habeas, 108 Nw. U. L. Rev. 139 (2013) Journals of the Continental Congress, (Worthington Chauncey Ford ed., Gov t Printing Office 1906) John D. Lawson, The Principles of the American Law of Bailments 15 (1895)... 16, 17 John D. Lawson, The Principles of the American Law of Bailments 29(9) (1895) James Lindgren, Fall From Grace: Arming America and the Bellesiles Scandal, 111 Yale L.J (2002) Henry L. McClintock, Handbook of the Principles of Equity 26 (1948) Joe Mont, Investing in Guns Beats Tech Stocks, The Street (Apr. 13, 2011), 31

13 XI Miscellaneous Continued: Page(s) 2 John Norton Pomeroy, A Treatise on Equity Jurisprudence 399 (Spencer W. Symons ed., 5th ed. 1941) Restatement (First) of Prop.: Introduction & Freehold Estates 7 (1936) Restatement (Second) of Prop.: Land. & Ten. 1.2 cmt. a (1977) Restatement (Second) of Prop.: Land. & Ten (1977) Restatement (Second) of Prop.: Land. & Ten (1977) A Norman J. Singer, Statutes and Statutory Construction (rev. 6th ed. 2000) Joseph Story & W.H. Lyon, Commentaries on Equity Jurisprudence (14th ed. 1918) U.S. Dep t of Justice, Bureau of Justice Statistics, Federal Justice Statistics 2006 Statistical Tables U.S. Dep t of Justice, Bureau of Justice Statistics, Felony Sentences in State Courts, 2006 Statistical Tables Wharton s Criminal Law 369 (Charles E. Torcia ed. 1980) Philip T. Van Zile, Elements of the Law of Bailments and Carriers, Including Pledge and Pawn and Innkeepers 21 (2d ed. 1908) Dan Zimmerman, The True Cost of Buying a Handgun, The Truth About Guns.com (Oct. 20, 2013), 31

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15 1 BRIEF FOR THE PETITIONER OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-4a) is unreported but available at 2014 WL The order of the district court (Pet. App. 5a-6a) adopting the magistrate judge s report and recommendation is unreported. The magistrate judge s report and recommendation (Pet. App. 7a-14a) is also unreported. JURISDICTION The judgment of the court of appeals was entered on January 28, On April 17, 2014, Justice Thomas extended the time for filing a petition for a writ of certiorari until June 27, The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISION AND RULE INVOLVED Section 922(g) of Title 18 of the United States Code provides, in pertinent part, that [i]t shall be unlawful for any person * ** who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * ** to * ** possess in or affecting commerce[] any firearm or ammunition. Rule 41(g) of the Federal Rules of Criminal Procedure provides, in pertinent part, that [a] person aggrieved by *** the deprivation of property may move for the property s return. INTRODUCTION This case concerns an important question at the intersection of criminal and property law. Title 18 U.S.C. 922(g), the purpose of which is to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat

16 2 to society, Small v. United States, 544 U.S. 385, 393 (2005) (internal quotation marks omitted), bars a convicted felon from possess[ing] *** any firearm or ammunition, 18 U.S.C. 922(g) (emphasis added). The government contends, however, that it also tacitly extinguishes a person s entire ownership interest in firearms that are unrelated to the offense of conviction. Petitioner was a United States Border Patrol Agent who surrendered his firearms to the FBI as a condition of bond while unrelated marijuana charges were pending against him. Following petitioner s guilty plea and service of his six-month sentence, the FBI refused to transfer his personal firearms to an unrelated third party who had purchased them. In response, petitioner filed a motion asking that the guns be transferred to the buyer or, alternatively, to petitioner s wife. The courts below held that allowing petitioner to transfer his nonpossessory interests in his firearms to an unrelated third party would be tantamount to giving him constructive possession over them. Pet. App. 4a (citing United States v. Howell, 425 F.3d 971, (11th Cir. 2005)); id. at 13a-14a (same). Alternatively, they held, once petitioner was convicted of a drug offense [he] had unclean hands to demand transfer of his firearms, even though [he] did not use those firearms in furtherance of his offense. Id. at 4a; id. at 11a-12a, 14a (same). The Eleventh Circuit s decision is wrong. It allows the government to use a statute that bars possession of firearms to dispense with formal forfeiture procedures and effectively strip citizens of their entire ownership interest in what are often significant household assets even when their convictions have nothing to do with those assets. And it deprives them of assets they could use to contribute to the support of their dependents at the very

17 3 time that imprisonment prevents them from supporting the household with employment income. If taken seriously, moreover, the Eleventh Circuit s alternative holding that a felon s unclean hands bar her forever and everywhere from equity would reinstate the ancient common-law doctrine of outlawry * * * a theory which could not be admitted without violating the rudimentary conceptions of the fundamental rights of the citizen. Hovey v. Elliott, 167 U.S. 409, 444 (1897). The result that felons cannot completely alienate firearms that they own but do not possess is particularly perverse since 922(g) s whole purpose is to keep guns out of the hands of potentially dangerous people. The judgment of the Eleventh Circuit must be reversed. A. Legal Background STATEMENT The general rule is that seized property, other than contraband, should be returned to its rightful owner once * * * criminal proceedings have terminated. Cooper v. City of Greenwood, 904 F.2d 302, 304 (5th Cir. 1990) (quoting United States v. Farrell, 606 F.2d 1341, 1343 (D.C. Cir. 1979) (quoting United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977))). Title 18 U.S.C. 922(g), however, makes it unlawful for any person * * * who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any firearm. This case involves the intersection of these two rules. In United States v. Howell, 425 F.3d 971 (11th Cir. 2005), the Eleventh Circuit first held that 922(g) bars a court from ordering the government to transfer firearms within its possession, but owned by a felon, to a third party. It rejected a Fifth Circuit precedent, Cooper v.

18 4 City of Greenwood, 904 F.2d 302 (5th Cir. 1990), in which the court had held that a felon s claimed ownership interest in [his noncontraband] firearms survived his criminal conviction and could not be extinguished without according him due process. 425 F.3d at 976 (quoting Cooper, 904 F.3d at 304) (emphasis added). It adopted instead the holding and reasoning of United States v. Felici, 208 F.3d 667 (8th Cir. 2000). In that case, the Eighth Circuit rejected the argument that the government could transfer to a third-party trust noncontraband firearms it had seized from a person convicted of a felony. 208 F.3d at 670. The Eleventh Circuit adopted Felici s holding that [f]ederal law prohibits convicted felons from possessing guns. * * * [A] request [for transfer to a third party] suggests constructive possession. Any firearm possession, actual or constructive, by a convicted felon is prohibited by law. Howell, 425 F.3d at (quoting Felici, 208 F.3d at 670). In Howell, the Eleventh Circuit rejected third-party transfers for an alternative reason as well. [I]n order for a district court to grant a Rule 41(g) motion, it held, the owner of the property must have clean hands. The doctrine of unclean hands is an equitable test that is used by courts in deciding equitable fate. The defendant in the instant case[, solely by virtue of his status as a felon,] has come into court with extremely unclean hands. One engaged in this type of criminal conduct is hardly entitled to equitable relief. 425 F.3d at 974 (citation omitted). No other court of appeals takes this position. The courts of appeals routinely allow felons to seek the return or transfer of noncontraband property through Rule 41(g) or other

19 5 equitable mechanisms provided they meet applicable requirements. See Pet B. Factual Background 1. In early June 2006, petitioner, who at the time was a United States Border Patrol Agent, was arrested and charged with distributing marijuana. Pet. App. 2a. At petitioner s bond hearing, the government requested and the magistrate judge required that petitioner surrender his firearm collection to the government as a condition of his bond. J.A. 23, 28, 30. That collection, which ha[d] been owned by [his] family * * * for many years, J.A.159, included a crossbow, a nonfunctional antique Japanese Arisika * * * rifle, a nonfunctional wall [h]anger, and a nonfunctional [h]omemade muzzle-loading rifle, see J.A. 45, 102, 103. None of those identified items is classified as a firearm under federal law, see 18 U.S.C. 921(a)(3), and 922(g) does not bar a felon from possessing any of them. Other firearms included three M1 Garand rifles dating from World War II and the Vietnam War, a group of.22 caliber rifles and pistols, two shotguns, a carbine, and several revolvers. J.A In all, petitioner turned over approximately eighteen firearms 1 and other items valued at $3, See J.A On the Receipt for Property it issued petitioner, the FBI marked the box indicating that the items were [r]eceived [f]rom him; it left unmarked the box 1 The Eleventh Circuit s opinion refers to nineteen personal firearms. Pet. App. 2a. The various inventories disagree, however, as to the exact number. The government agrees that the exact number of firearms is not material to the legal issue. Br. in Opp. 3 n.1. 2 This total excludes the value of petitioner s service firearm, which is included in the government s appraisal. See J.A. 52 (listing value of service revolver at $ ).

20 6 indicating that items were [s]eized from him. J.A. 43, 45. Petitioner later pleaded guilty to one drug charge and was sentenced to six months imprisonment and 24 months of supervised release, including four months of home detention. Clerk s Mins. Proceedings of Sentencing, D.C. Dkt. No The court later shortened his term of supervised release without opposition from the government or the Bureau of Prisons. Order, D.C. Dkt. No Soon after he began serving his sentence, Mr. Henderson asked the FBI through his attorney what steps need to be taken to transfer the firearms. J.A. 78; Pet. App. 9a. He received no response. Ibid. Shortly after serving his sentence, petitioner contacted the FBI again to arrange for the transfer of his firearms to a third party. Ibid; J.A Following the FBI s instructions, petitioner submitted a letter describing his case together with a bill of sale and the contact information for the buyer, William Boggs. Pet. App. 9a-10a; J.A When Mr. Boggs later chose to withdraw from the transaction, Mr. Henderson arranged to sell his ownership interest in the firearms to Robert Rosier and again submitted the requested paperwork to the FBI. Pet. App. 10a; J.A After receiving no response for more than a month, petitioner wrote another letter to the FBI and on four different occasions between April and June 2009 attempted to contact an agent familiar with the case. Pet. App. 10a. Twelve months after submitting a signed bill of sale, petitioner received a letter from the Jacksonville FBI office asserting that the Bureau had seized his firearms on June 9, 2006 the date he complied with the

21 7 magistrate judge s order to surrender the firearms and notifying him of the procedure for submitting claims. Ibid. In December 2009, petitioner and Mr. Rosier filed a claim with the FBI requesting that the agency transfer ownership to Mr. Rosier. Pet. App. 10a-11a. Four to five months later, the FBI rejected the claim, asserting that the release of the firearms to you or your designee, Robert Rosier * ** would place you in violation of federal law as it would amount to constructive possession. J.A. 121 (citing Howell, 425 F.3d at , and Felici, 208 F.3d at 670). The letter advised that petitioner had 10 days to request reconsideration, which he did. J.A C. Procedural History 1. After receiving no response for another month, petitioner, proceeding pro se, filed a motion in district court, asking that the firearms be transferred to Mr. Rosier or petitioner s wife. Pet. App. 2a; J.A In his motion, he invoked the federal courts equitable powers as authority for ordering the transfer. J.A (citing cases). In its response, the government recharacterized Mr. Henderson s general equitable motion as a motion pursuant to Fed. R. Crim. P. 41(g), J.A. 59; see Br. in Opp. 4 (noting [t]he government construed the motion as having been filed under Rule 41(g) ), a provision that petitioner had never invoked, see J.A The magistrate judge assigned to the case withheld action until the FBI issued a final agency decision on petitioner s request for reconsideration. Order Taking Under Advisement, D.C. Dkt. No Finally, in January 2011 more than two years after petitioner first sought to transfer his ownership interest in the firearms the FBI issued its final decision denying his appeal. Pet. App. 11a; J.A. 74. Mr. Henderson then

22 8 renewed his motion before the district court. See J.A Again, he invoked the federal courts equitable powers and did not mention Rule 41(g). See J.A The magistrate judge took up petitioner s motion for return of property and, following the government s lead, treated it as if it had been filed under Rule 41(g). See Pet. App. 11a. That rule provides, in relevant part, that [a] person aggrieved *** by the deprivation of property may move for the property s return. Fed. R. Crim. P. 41(g). Although recognizing that federal courts were divided on whether firearms to which a convicted felon has legal title, but not possession, can be sold for the owner s benefit without attaching constructive possession to him, Pet. App. 13a, the magistrate judge recommended denying petitioner relief because it was bound by Howell, ibid., the controlling circuit precedent. Although the firearms were neither seized from [petitioner], nor constituted contraband, nor were they forfeited, id. at 13a-14a, Howell dictated that allowing a defendant to transfer the firearms or receive money from their sale would be constructive possession prohibited by 922(g), id. at 12a. The magistrate judge also noted that Howell had held that to prevail under Rule 41(g), the owner must have clean hands * * *, but a defendant convicted of a drug offense has unclean hands and is not entitled to equitable relief. Id. at 11a-12a. 3. Mr. Henderson then filed objections to the magistrate judge s report and recommendation. J.A He mentioned Rule 41(g) only once as a mean[s] to provide equitable relief. See J.A He argued, among other things, that Howell was distinguishable, J.A , and that the magistrate judge and the government were confusing possession of the firearms with their ownership, J.A In particular, he

23 9 claimed that the government was wrongly equating criminal constructive possession with even the most minimal exercise * * * of ownership - transferring legal title (and, ironically, thereby divesting title to personal property that the owner may not lawfully possess). J.A The district court, however, adopted the magistrate judge s report and recommendation as the opinion of the court and denied the motion. Pet. App. 5a-6a. 4. Still proceeding pro se, petitioner appealed. His brief mentioned Rule 41(g) only in a single argument header, see J.A. 177, and argued instead that general principles of equity supported relief, see, e.g., J.A. 184 ( Equity forbids this result. ); J.A. 189 ( [T]his court must look to an equitable solution. ); J.A ( [F]ailing to grant equitable relief[] results in imposition of a fine or penalty not imposed by the sentencing judge[.] * * * Equity requires this Court to do better. ). He also renewed his argument that 922(g) extinguished only his possessory interests in his firearms, not the remaining ownership interests. J.A. 187, (citing cases). In addition, he outlined several different equitable means through which the courts could grant him relief, including order[ing] a sale [of the items covered by 922(g)] for [his] account. J.A. 193 (citing Miller, 588 F.3d at 419). He argued that such a disposition would preclude me, as a convicted felon, from unilaterally dictating or directing disposition, * * * and it avoids the constitutional issues arising under the Takings Clause, while it fully protects my legitimate property interests. I [would] not [be] setting the value, directing the sale or purchase of the firearms, but [would be] merely compensated for the value of

24 10 my property by a neutral third-party, subject to any commission for such sale. J.A (emphasis omitted). He further noted that [t]he court can set such conditions as it deems necessary. J.A The court of appeals affirmed the district court s denial of relief. Pet. App. 1a-4a. The court held that granting petitioner s motion and transferring the firearms to a third party would violate 18 U.S.C. 922(g) by placing him in constructive possession of the firearms he had surrendered to the FBI. See id. at 4a. Although acknowledging cases from other circuit and district courts which afforded defendants relief, id. at 3a (citing, inter alia, United States v. Zaleski, 686 F.3d 90 (2d Cir. 2012), United States v. Miller, 588 F.3d 418 (7th Cir. 2009), and Cooper, 904 F.2d at 302), the court denied relief because our decision in Howell controls, id. at 4a. The court, again following Howell, held in the alternative that petitioner could not invoke equity at all: Mr. Henderson s equitable argument rings hollow. We held in Howell that a defendant convicted of a drug offense ha[s] unclean hands to demand return of his firearms even though, as with Mr. Henderson, th[e] defendant did not use those firearms in furtherance of his offense. Ibid. SUMMARY OF ARGUMENT Title 18 U.S.C. 922(g) has a clear aim: to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society. Small v. United States, 544 U.S. 385, 393 (2005) (internal quotation marks omitted and emphasis added). It achieves that aim straightforwardly by making it unlawful for any [felon]

25 11 to * * * possess * * * any firearm. 18 U.S.C. 922(g) (emphasis added). Neither its purpose nor its text, however, reaches any other property interest an owner has in her firearms, particularly the right to sell or transfer them to another person once the law no longer allows her to possess them. I. The Eleventh Circuit prohibits a district court from ordering such a sale or transfer because it believes doing so would deliver[] actual or constructive possession of firearms to [the] convicted felon in violation of 922(g). Pet. App. 4a. That premise is mistaken. It misunderstands the plain meaning of the statute s key term by confusing possession with other incidents of ownership, ignores the language of closely related statutory provisions, violates the statute s central purpose, allows the government to effectuate a forfeiture without satisfying any of that procedure s strict substantive or procedural requirements, and raises serious constitutional doubts. A. If a statut[e s] text is plain and unamibiguous[, the court] must apply the statute according to its terms. Cacieri v. Salazar, 555 U.S. 379, 387 (2009) (citations omitted). Section 922(g) bars a felon from possess[ing] a firearm. Its textual prohibition extends no further. On its face, then, it can bar sale or transfer of ownership only if the act of selling or transferring imputes possession at some point to the owner himself. In other words, it prohibits an owner from completely alienating his property interests in his firearms only if he somehow possesses them in the process of alienating them from himself. Since a sale of firearms in the government s possession for the owner s benefit would entail no actual

26 12 possession on the owner s part, 922(g) s bar operates only if it attaches constructive possession to the owner. It does not. Possession and ownership are two separate sticks in the bundle of property rights and a person can transfer one right without affecting the other, as both bailment and landlord-tenant law demonstrate. Just as a bailor who sells property held by a bailee to a third party at no time enjoys possession constructive or otherwise so too a gun owner at no point enjoys possession when the government sells guns of his that it possesses to a third party and directs that payment be made to the owner. To say the owner does enjoy constructive possession misunderstands long-established and fundamental notions of property. Alienating the property gives the owner no control over it. It does, in fact, the opposite. B. The Eleventh Circuit s understanding of possession is also inconsistent with the structure of the statute and several well-accepted canons of statutory interpretation. Other provisions in the same Act distinguish between possessing a gun, on the one hand, and owning, bartering, selling and disposing of it, on the other. In such cases, expressio unius est exclusio alterius strongly implies that 922(g) reaches possession but not selling or owning a gun. Likewise, this Court s anti-surplusage doctrine indicates that possessing does not ordinarily comprehend owning, bartering, or selling. Otherwise, these other terms in the statute would be redundant. C. Extending possession to transfer of ownership also does nothing to further 922(g) s purpose keeping guns away from those likely to be dangerous. If the government sells for an owner s benefit guns she can no longer possess, it alienates her interest in them

27 13 completely. In fact, the Eleventh Circuit s rule has the perverse result of forcing felons to retain a property interest in firearms they wish to be completely rid of. D. The Eleventh Circuit s broad theory of constructive possession also allows the government to accomplish a forfeiture of noncontraband firearms without providing the owner any process. Since, in this view, 922(g) s bar on possession also prohibits any sale or transfer of ownership, it effectively extinguishes all of the owner s interests in his property, rendering it completely without economic value to him. It does so, moreover, without according the owner any of the protections that the Constitution, statutes, and federal rules establish. These include such central requirements as notice, an impartial hearing, an opportunity to argue that the action is excessive under the Eighth Amendment, and a right to a trial by jury. E. The Eleventh Circuit s interpretation of 922(g) runs against the constitutional avoidance doctrine. Since it allows the government to extinguish an owner s interests in noncontraband firearms without any reason, it raises serious due process, takings, Fourth Amendment, Second Amendment, and Eighth Amendment concerns all of which would be avoided by adhering to traditional notions of possession in the common law of property. II. The Eleventh Circuit s alternative ground for its decision that commission of a felony gives one unclean hands and forever disqualifies someone from seeking equitable relief of any kind ignores the central requirement of that doctrine: that there be a close relationship between the past wrongdoing and the relief requested. The unclean hands doctrine does not destroy

28 14 all of a felon s equitable rights going forward and effectively make him an outlaw. Taken to its logical conclusion, the Eleventh Circuit s rule would foreclose courts from ever considering a claim for return of property to someone convicted of a crime even from another private party who stole it. III. Traditional equitable principles allow the courts to authorize the government to sell or transfer firearms owned by a felon to an appropriate third party. Equity s long-recognized flexibility to fashion appropriate relief allows it to devise mechanisms, like these, that respect the owner s nonpossessory interests in his firearms, ensure that he has no control of them in the future, and avoid burdening the government. Indeed, lower courts have recognized that equity authorizes even transfers to third parties designated by the owner under specific conditions. ARGUMENT I. BECAUSE 922(G) PROHIBITS ONLY POS- SESSION, IT DOES NOT BAR THE TRANSFER OR SALE OF FIREARMS TO APPROPRIATE THIRD PARTIES Section 922(g) s purpose is to keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society. Small v. United States, 544 U.S. 385, 393 (2005) (internal quotation marks omitted). As the Eleventh Circuit recognized, that statute, by its terms, extends only to possession of firearms. Pet. App. 4a ( We den[y] Rule 41 relief *** because of the concern with courts violating 18 U.S.C. 922(g) by delivering actual or constructive possession of firearms to a convicted felon. ) (emphasis added); United States v. Howell, 425 F.3d 971,

29 (11th Cir. 2005) ( Even though the defendant s [idea of a proposed sale] is interesting *** any firearm possession, actual or constructive, by a convicted felon is prohibited by law. ) (emphasis added). The court of appeals nonetheless held that a court cannot authorize the government to transfer or sell for the benefit of the convicted owner firearms it holds without him somehow possessing the firearms in the process. The decision of the court of appeals is wrong. It disregards the clear meaning of the key statutory term by confusing possession with other incidents of ownership. It also ignores the language of closely related statutory provisions, violates the statute s central purpose, allows the government to effectuate a forfeiture without satisfying any of that procedure s strict substantive or procedural requirements, and raises serious constitutional doubts. A. Possession Has A Clear, Long-Established Meaning Distinct From Other Incidents Of Ownership If the statutory text is plain and unambiguous [the court] must apply the statute according to its terms. Carcieri v. Salazar, 555 U.S. 379, 387 (2009) (citations omitted). This Court has also recognized that when a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning. United States v. Turley, 352 U.S. 407, 411 (1957) (citations omitted). Under the common law, a possessory interest commonly entails the right to exclude others, by a person who is not necessarily the owner. Black s Law Dictionary 1284 (9th ed. 2009); Restatement (First) of

30 16 Prop.: Introduction & Freehold Estates 7 (1936) ( A possessory interest in land exists in a person who has *** a physical relation to the land of a kind which gives a certain degree of physical control over the land, and an intent so to exercise such control as to exclude other members of society in general from any present occupation of the land. ). This understanding accords with the widespread understanding among the courts of appeals that possession, including constructive possession, entails dominion and control over the property in question. See, e.g., United States v. Garrett, 903 F.2d 1105, 1110 (7th Cir. 1990); United States v. Pelusio, 725 F.2d 161, 167 (2d Cir. 1983); United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980); United States v. Craven, 478 F.2d. 1329, 1333 (6th Cir. 1973), abrogated on other grounds by Scarborough v. United States, 431 U.S. 563 (1977); United States v. Virciglio, 441 F.2d 1295, 1298 (5th Cir. 1971). The Eleventh Circuit s rule that the government s sale or transfer of a gun on behalf of an owner who has been convicted of a felony necessarily imputes constructive possession to the owner violates this wellestablished understanding. To begin with, the government s transfer to a third party gives the owner no right to control or right to exclude the two central indicia of possession. While the firearms are in the government s possession, the government, as bailee, enjoys the complete right to control and to exclude others, including the bailor himself. See John D. Lawson, The Principles of the American Law of Bailments 15, at 34 (1895) ( The bailee not having the title, nevertheless has in addition to the possession of the chattel a special, limited or qualified property in it which gives him a right of action against any one, whether the bailor or a

31 17 stranger, interfering with his possession or doing damage to the bailed article. ). 3 The convicted owner enjoys neither. He cannot use the firearms, access them, or decide where they are stored, how they are stored, or how they are maintained. Nor can he stop others whom the government permits from handling them. Under general principles of law, a bailor can sell the property to a third party during the bailment period. See Lawson 29(9), at 62. When he does, the bailor does not temporarily regain possession in violation of the bailment agreement; throughout the transaction, the bailee retains the same right to control the property and exclude others, including the bailor. Id. 15, at 34. It is blackletter law that a bailment will not be affected by a sale made by the bailor of his reversionary interest to a third person, for the reason that he can convey no greater interest than he possesses, and has not, during the bailment, a present right of possession. Id. 29(9), at 62; see Philip T. Van Zile, Elements of the Law of Bailments and Carriers, Including Pledge and Pawn and Innkeepers 21 (2d ed. 1908) ( [T]he bailor may, subject to the bailee s rights * * *, sell[,] mortgage[,] or * * * incumber [sic] its right, title, and interest in the property * * * bailed. ). That the convicted owner receives money from the sale (either through the government as intermediary or directly from the new owner) makes no difference to this analysis. His receipt of the proceeds gives him no right 3 Once the firearms are transferred to a third party, the original owner can exercise no right to control or right to exclude. Only the new owner can by virtue of her newfound full ownership. She alone, not the original owner, can decide when, how, where, and by whom the firearms can be used. The sale has extinguished the original owner s property interest in them.

32 18 to control or right to exclude. The new owner gains these possessory rights and, in any event, she receives possession from the government, not the original owner. Although the sale transfers the possessory rights of control and exclusion from the government to the third party, at no time does the original owner enjoy the power to exercise either. He simply gains no constructive possession. This conclusion is confirmed by examining another common situation of divided possession and ownership: a standard landlord-tenant lease. In it, the landlord who owns the property grants the right of possession to the tenant for a period of time. The owner no longer enjoys the right to possess and, indeed, the tenant (subject to certain express or implied contractual conditions) can even exclude the owner. Restatement (Second) of Prop.: Land. & Ten. 1.2 cmt. a (1977). The owner typically retains the right to sell the property subject to the lease. Id But in the process of selling the property then in possession of the tenant, the landowner does not, even temporarily, regain possession in violation of the tenant s rights under the lease. See id cmt. a ( The enjoyment by the tenant of his rights and expectations under the lease usually does not depend significantly on the landlord continuing to own his reversionary interest in the leased property. ). Although the Eleventh Circuit has concluded that transfer or sale to a third party suggests constructive possession, Howell, 425 F.3d at 977 (quoting United States v. Felici, 208 F.3d 667, 670 (8th Cir. 2000)), it has never explained exactly when (or how) the owner would enjoy constructive possession. This is no accident. It cannot articulate the point in the transaction where the convicted owner attains possession because he never does.

33 19 At no point during the transfer of possession of the firearm from the government to the new owner or the transfer of payment for it to the original owner does the felon control the firearms or have the right to exclude others from using them. The Eleventh Circuit s notion of constructive possession conflicts with other long-settled views of the common law. Under common-law larceny, for example, [p]roperty is deemed to remain in the constructive possession of the person who was last in actual possession until he has abandoned it, given it to another person, or until another person has otherwise acquired actual possession. 3 Wharton s Criminal Law 369 at 349 (Charles E. Torcia ed. 1978); see United States v. Sellers, 670 F.2d 853, 854 (9th Cir. 1982) (per curiam) (same). In a court-ordered sale, in other words, the government as bailee would retain constructive possession of the firearms until the moment they are transferred to the new owner, who then immediately obtains possession. The former owner never enjoys possession constructive or otherwise. The Eleventh Circuit s misguided conclusion that such transfer fleetingly provides the convicted owner with constructive possession effectively destroys all his remaining nonpossessory interests in the property. Under this mistaken understanding, a person convicted of a felony cannot exercise his right to sell his property without violating the law s ban on the distinct right of possession. The rule effectively transforms a ban on possession into a ban on alienation and, in so doing, violates both the plain meaning of the statute and foundational principles of property law.

34 20 B. The Eleventh Circuit s Expansion Of Possession To Include Nonpossessory Interests Is Inconsistent With The Structure Of The Statute And Multiple Canons Of Statutory Construction The Eleventh Circuit s bootstrapping of possession into ownership cannot be squared with Congress s careful statutory scheme. As this Court has recognized, possession is just one stick in the bundle of property rights, see United States v. Craft, 535 U.S. 274, 278 (2002), and this Court has distinguished possession, in particular, from the rights to use and dispose of property, see Andrus v. Allard, 444 U.S. 51, (1979) (distinguishing between the right to sell and the rights to possess and transport * * * property, and to donate or devise it ); see also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) ( Property rights in a physical thing have been described as the rights to possess, use and dispose of it. ) (internal quotation marks omitted). Congress has observed these distinctions in its regulation of firearms. The Eleventh Circuit s expansive view of possession, however, would overturn all of Congress s careful drafting in a particularly pernicious way. Although Congress adopted the specific language to possess in 922(g), it adopted entirely different and more inclusive language in several closely related provisions in the very same Act. And, as this Court has held, when Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th. Cir. 1972).

35 21 Consider 924(d)(1). This section, like 922(g), was enacted as part of The Firearm Owner s Protection Act of See Pub. L. No , 102(6), 104(a)(3), 100 Stat. 452, 457. It provides, in relevant part, that when someone has forfeited guns allegedly involved in certain crimes, upon acquittal of the owner or possessor * * *, the seized or relinquished firearms or ammunition shall be returned forthwith to the owner or possessor. 18 U.S.C. 924(d)(1) (emphasis added). In this provision, Congress the very same Congress acting at the same time it enacted 922(g) carefully distinguished between owner[s] and possessor[s] and provided that people with each of these different property interests must have their guns returned. It therefore must be presumed that Congress act[ed] intentionally and purposely in the disparate * * * exclusion, Russello, 464 U.S. at 23 (citation omitted), of owner[s] from 922(g) in other words, that Congress did not intend this provision to extinguish gun owners nonpossessory interests in their firearms. No good reason exists here for overriding the Russello presumption. Consider as well 922(j), which appears in the same U.S. Code provision as 922(g). It makes it unlawful for any person to receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm. 18 U.S.C. 922(j) (emphasis added). By distinguishing between possessing a firearm, and barter[ing], sell[ing], or dispos[ing] of it, Congress clearly indicated that a prohibition on possessing a firearm does not itself forbid disposing of it; by the same token, 922(g) s prohibition on possession of a firearm by a felon does not include nonpossessory incidents of ownership. Again, the exclusion of these terms from 922(g) must be presumed * * * intentional[ ] and purpose[ful], Russello, 464 U.S. at 23,

36 22 under the doctrine of [e]xpressio unius est exclusio alterius, Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). Congress has also expressly distinguished between possession and ownership in a number of other closely related provisions. Section 931(a), for example, makes it unlawful for a convicted felon to purchase, own, or possess body armor, 18 U.S.C. 931(a) (emphasis added); 229(a)(1) makes it a crime to, among other things, own, possess, or use *** any chemical weapon, id. 229(a)(1) (emphasis added); and 229B(a) likewise provides that any person convicted under 229A(a) must forfeit *** any property, real or personal, owned, possessed, or used by a person involved in th[at] offense, id. 229B(a) (emphasis added). Each of these provisions specifically distinguishes between ownership and possession and includes both terms. Section 922(g) includes only the latter. Here too expressio unius est exclusio alterius indicates that 922(g), unlike these other provisions, does not bar other rights of ownership but only possession. The broad interpretation of possession embraced by the Eleventh Circuit would, moreover, render superfluous all the other terms Congress included in these other provisions, thereby violating yet another cardinal principle of statutory construction, Williams v. Taylor, 529 U.S. 362, 404 (2000), that [a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoting 2A Norman J. Singer, Statutes and Statutory Construction 46.06, at (rev. 6th ed. 2000)). As [this Court] ha[s long] noted * * *, we are hesitant to

37 23 adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law. Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988). Clearly, Congress understands the difference between ownership and possession and has used each term deliberately with its specific meaning in mind. Congress s decision in drafting 922(g) to bar possession but not ownership, transfer, or sale means it intended to bar the one and not the others. [C]ourts must presume that [the] legislature says in a statute what it means and means in a statute what it says there. Connecticut Nat l Bank v. Germain, 503 U.S. 249, (1992). This is particularly true when, as the government itself has previously argued, Congress crafted the * * * forerunner to Section 922(g) with detailed precision, U.S. Br. at 13, Small v. United States, 544 U.S. 385 (2005) (No ) (citing Barrett v. United States, 423 U.S. 212, (1976)), and this Court has held that Congress knew the significance and meaning of the language it employed in 922(g), Barrett, 423 U.S. at 217. In fact, this Court has noted, [i]t is obvious that the language employed throughout * * * [was] chosen with care and that the provisions represent a carefully constructed package of gun control legislation. Scarborough v. United States, 431 U.S. 563, 570 (1977). Thus, Congress s bar of only possession must mean[ ] exactly what it says, Barrett, 423 U.S. at 216 (quotation marks and citation omitted), and no more. C. The Eleventh Circuit s Rule Turns 922(g) s Purpose On Its Head Prohibiting those convicted of a felony from selling their firearms to third parties does nothing to advance